Gilgit-Baltistan:Recognition as Constitutional and Integral part of Pakistan

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On the April 29, 2011, the founder of the ultra nationalist Balwaristan National Front, Nawaz Khan Naji, won the by-election in Gilgit-Baltistan’s Ghizer constituency at the expense of the Pakistan People’s Party and the Pakistan Muslim League Nawaz. The party is rumoured to favour maximum autonomy for the region, if not outright independence, and its rallying cry revolves around Gilgit-Baltistan being allegedly treated like a colony by Pakistan. Hence, unsurprisingly, the victory has sent shock waves across the political landscape, especially considering that the area is the hometown of the present Governor of the region and PPP representative, Pir Karam Ali Shah.

The result may have come as a shock to many in Pakistan, however, the fact is that nationalist parties have been gaining a foothold in the region for quite some time. In fact, the politics of these groups revolve around a sense of rejection and deprivation brought on by the inability of the Pakistani state to afford the patriotic people of Gilgit-Baltistan a status within the Federation of Pakistan, resulting in a lack of constitutional and legal protections.

This sense of deprivation has been further accentuated by the Kargil episode, in which the government of Pakistan is said to have refused to recognise the sacrifices of scores of martyred army men from Gilgit-Baltistan.

Interestingly enough, although the state of Pakistan has consistently refused to recognise the region of Gilgit-Baltistan as a part of Pakistan, it nonetheless considers its inhabitants citizens of Pakistan., as is evidenced by the application of the Citizenship Act to the region. This constitutional position, or lack thereof, arose as a result of the well-known UN resolution which demanded a free and fair plebiscite for the Kashmiri people as a part of a ceasefire arrangement. This resolution has given rise to a persisting uncertainty about the status of Gilgit-Baltistan, with it being widely believed that the Pakistani government allowed and supported the demarcation of Gilgit-Baltistan as a part of Kashmir (and therefore a disputed area) in order to use it as a bargaining chip in the settlement of the dispute.

In a situation where a referendum is in fact held, the Muslim majority population of Gilgit-Baltistan could be effectively used to swing the vote of the referendum in favour of accession to Pakistan. In light of the aforementioned objective, a formal constitutional status and the benefits accruing from the same were not given to Gilgit-Baltistan by successive governments or even by the 1973 Constitution of Pakistan.

Even the Supreme Court, in 1999 SCMR 1379, shirked away from declaring the territory of Gilgit-Baltistan a constitutional part of Pakistan. In formulating its opinion, the Supreme Court stated that it was the job of the executive and legislative branches of government to render any such decision. However, without addressing the fundamental issue of its status, the Supreme Court also ironically held that for all events and purposes, the people of Gilgit-Baltistan were citizens of Pakistan.

The said omission of the legislature and executive in making Gilgit-Baltistan a part of Pakistan, and the decision of the Supreme Court to avoid any such declaration, has created unprecedented confusion in the ranks of the citizens of Gilgit-Baltistan. The said predicament has disenfranchised the people of Gilgit-Baltistan in as much as by refusing to recognise the region of Gilgit-Baltistan as a part of Pakistan, the state and courts are essentially depriving the inhabitants of the right of representation in the parliament of Pakistan.

Although many may contend that the people of the area may not necessarily desire any such representation, it is apt to note that without such a voice within the corridors of power, the people of the area will forever be unable to influence decisions that will ultimately impact their lives. A case in point is the formulation of the Legal Framework Order, 1994, and the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009. The lack of influence and say of the residents of Gilgit-Baltistan in the political and military apparatus of Pakistan has inevitably resulted in them being governed by laws in which they have little investment or involvement.

However, that said, there does appear to be a stop gap method of temporarily resolving the constitutional limbo of the area till fresh legal and constitutional measures can be undertaken for a more permanent solution. The path to redemption has been highlighted by the Supreme Appellate Court of Gilgit-Baltistan, which in exercise of its suo motu jurisdiction and as per Article 61 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, stated in 2010 GBLR 160 that Gilgit-Baltistan was in fact a part of Pakistan. It referred to Article 1 of the Constitution of Pakistan (defining the territories of Pakistan) and declared that Gilgit-Baltistan fell within Article 1(2)(d) of the Constitution of Pakistan, 1973, which stated that Pakistan shall comprise of ‘such states and territories as are or may be included in Pakistan, whether by accession of otherwise’.

It further went on to state that as such, the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, had constitutional protection and status in as much as the same was enacted in pursuance of Article 258 of the Constitution of Pakistan, which stated that: “subject to the Constitution, until [the] Majlis-e-Shoora (parliament) by law otherwise provides, the president may, by order, make provisions for peace and good government of any part of Pakistan not forming part of a province.” In a nutshell, the Supreme Appellate Court, via the use of various constitutional provisions, has attempted to elevate the status of the area, and its laws, to that of a constitutional constituent of the Federation of Pakistan.

Although it remains to be seen as to whether the above mentioned interpretation of the Constitution, bringing Gilgit-Baltistan within the framework of the federation, shall be solemnised by the Supreme Court of Pakistan as well as the Government of Pakistan, the same is certainly a step in the right direction.

The people of Gilgit-Baltistan have been waiting for a period in excess of 62 years for a declaration of their status, if not outright incorporation into the Federation of Pakistan. It is important that the powers that be wake from their eternal slumber, and finally afford the people of Gilgit-Baltistan what is rightfully theirs – recognition as a constitutional and integral part of Pakistan and all the benefits and privileges of attaining the same.

The writer is a lawyer based in Karachi. Email: basil.nabi@ gmail.com

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